Court No. - 33

Case :- WRIT - A No. - 3223 of 2022

Petitioner :- Harvir Singh

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Balwant Singh

Counsel for Respondent :- C.S.C.

Hon'ble Mrs. Manju Rani Chauhan,J.

Heard learned counsel for the petitioner and learned Standing Counsel for

the State-respondents.

This writ petition has been filed with the following prayer:-

"a) issue a writ, order or direction in the nature of certiorari, quashing the impugned

order dated 8.07.2020 passed by Additional Director General of Police, Establishment,

Police Head Quarter, Director General Uttar Pradesh Lucknow so far it relates to the

petitioner and the order dated 16.12.2021 passed by Deputy Commissioner, Police

Commissionerate, Gautam Budh Nagar, (Annexure Nos. 3 & 8 to this writ petition)."

Learned counsel for the petitioner submits that the petitioner, who was

working as Sub Inspector, was transferred vide order dated 8.7.2020 from

Civil Police to G.R.P., Gautam Buddh Nagar, however, the aforesaid order

was not given effect to and by impugned order, the petitioner has been

relieved to join the place of posting. He further submits that the order dated

8.7.2020 was passed on the ground of administrative exigency, however,

relieving the petitioner after passage of three and half years, without

mentioning whether any administrative exigency is in existence or not and

implementing transfer order at belated stage is bad.

Learned counsel for the petitioner further submits that a person cannot be

transferred from Civil Police to another branch, i.e. Police Fire Services,

G.R.P., P.A.C., U.P. Police Radio Services etc., without taking his consent.

In support of his contention, he relied upon the judgment of this Court in

the case of Chandan Kumar Singh vs. State of U.P. and 4 Ors. order dated

14.12.2021 passed in Writ-A No.16415 of 2021.

Learned Standing Counsel submits that the transfer order has been made on

administrative grounds, hence, there is no illegality or infirmity in the order

impugned.

Undisputedly, the scope of interference in transfer matters is very limited

for the reason that transfer is considered to be an administrative exercise

and is an incident of service, therefore, if administrative exigency arises,

the employer has every right to transfer the employee but on several

occasions, the Apex Court as well as the High Court has considered this

aspect that if an employee is arbitrarily transferred then that conduct of the

authorities is considered to be a mala fide action on their part and in such a

circumstance, the Court has every right to interfere in the matter.

The practice of abrupt and mala fide transfer by abuse of power by the

Competent Authority has been depreciated by the Apex Court in the case of

B. Varadha Rao Vs. State of Karnataka reported in (1986) 4 SCC 131

wherein the Apex Court has held that an employer can transfer the

employees to meet bonafide exigency of administration but if the transfers

are done frequently without any cogent reason of administrative exigency

then such transfers are liable to be struck down.

Again in the case of Somesh Tiwari Vs. Union of India reported in (2009)

2 SCC 592, the Apex Court has held that though transfer is an incident of

service and cannot be interfered with often but if the order of transfer is

based on irrelevant ground or without any rhyme and reason, it becomes

mala fide and constitutes 'malice in law'. Relevant paragraph nos. 19 & 20

are as under:-

"19. Indisputably an order of transfer is an administrative order. There cannot be any

doubt whatsoever that transfer, which is ordinarily an incident of service should not be

interfered with, save in cases where inter alia mala fide on the part of the authority is

proved. Mala fide is of two kinds - one malice in fact and the second malice in law.

20. The order in question would attract the principle of malice in law as it was not

based on any factor germane for passing an orde